Inheritance Rights: Understanding Your Entitlements as a Child of the Deceased

A client asked:

"My father passed away three months ago, and I am his only child. He remarried before he passed away. What am I entitled to?"

Answer.

Your entitlement to your late father’s estate depends on several factors, including your age, financial dependency, whether he left a will, and how he was married to his new wife.

1. Your Age and Financial Dependency

• If you are a minor (under 18 years old) or were financially dependent on your father at the time of his passing, you may have a claim for maintenance from his estate. This is based on the legal duty of a parent to support their children.

2. If Your Father Left a Will

• If your father had a valid will and named you as a beneficiary, you would inherit according to the terms of the will.
• If the will provides for his new wife, you will need to check how the estate is divided.

3. If Your Father Did Not Leave a Will (Intestate Succession Act)

If your father passed away without a will, the distribution of his estate is governed by the Intestate Succession Act, 1987. Under this Act:

• The estate is shared between the spouse (his new wife) and children (you).
• The surviving spouse is entitled to either a child’s share or R250,000 (whichever is greater).
• A child’s share is calculated by dividing the estate equally among the spouse and children.
• If the estate is less than R250,000, the entire amount may go to his wife, but if there is more, you will inherit your share.

4. How Your Father Was Married

The type of marriage he had with his new wife affects how his estate is distributed:

• If they were married in community of property, half of the estate automatically belongs to the spouse before distribution.
• If they were married out of community of property with accrual, the surviving spouse may have a claim based on the accrual system.
• If there was no accrual, then the entire estate is distributed according to intestate succession.

Next Steps

• If there is a will, you should check if you are named as a beneficiary.
• If there is no will, you can determine your entitlement under the Intestate Succession Act as outlined above.
• If you were financially dependent on your father, you may be able to claim maintenance from his estate.
• You may want to consult an attorney to ensure you receive your rightful share of the estate.